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November 07, 2008

Circuit Stays Prison Contempt Order

The Ninth Circuit Court of Appeals late Friday blocked contempt proceedings against Gov. Arnold Schwarzenegger and Controller John Chiang for failing to provide $250 million for a sweeping prison medical system overhaul.

Earlier Friday, U.S. District Court Judge Thelton Henderson had rejected the
officials’ request for a stay and ordered them to turn over $250 million to
Kelso by the end of the day or face a contempt hearing on Nov. 12. But quickly
after Henderson’s order was filed, the Ninth Circuit, at the request of Attorney General Jerry Brown, issued its own stay and scheduled a hearing on the matter for early next year. The court did not immediately offer an explanation for its ruling.

The appellate ruling is a blow to J. Clark Kelso, the prison receiver appointed by Henderson, who had pushed the contempt proceedings as a way of prying up to $8 billion in construction funding out of reluctant state leaders. Kelso hired Morrison & Foerster's James Brosnahan specifically to pursue the contempt charges.

“I am a servant of the court,” Kelso told reporters Friday afternoon. “I’m always pleased to do what the district court, or the Ninth Circuit or ultimately, the U.S. Supreme Court asks me to do.”

Schwarzenegger and Chiang, represented by Brown’s office, have argued that Henderson has not laid the proper procedural groundwork for dipping into the state treasury. They also say that federal law does not give Henderson

the authority to build prisons; Kelso’s plans call for up to seven new prison medical facilities around the state to house 10,000 chronically ill inmates.

Henderson has said repeatedly that poor conditions in the state’s prison medical care system violate the Constitution.

Kelso late Friday suggested that Brown, not Schwarzenegger and Chiang, is driving the legal attempts to stop his construction plans.

“I think there’s a problem in having
all the lawyers involved,” Kelso said. “I think it’s fair to say that the
attorney general’s involvement has been problematic because we didn’t have
[problems] … until he decided to make this one of the things he’s concerned
about. And there may be a disconnect there. Because the meeting we had with the
governor, he made it clear he … wants to end all the
litigation.”

But Kelso has also failed so far to persuade legislative Republicans to approve his construction plans.

The Ninth Circuit has asked for both
sides to file briefs through January. Kelso said he will tap his agency’s
operational budget to pay for early planning expenses, but he conceded that his
ambitious plans to start construction as soon as February will now almost
certainly be delayed.